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| Stacey Barker 2009 booking photo |
Anyone who has been following this case will understand the reason I wrote the title to this post as a question, there has been a lot of delays...trial dates set and postponed, failed plea deal negotiations, and more, more, more delays. I'm to the point that I won't believe this trial is happening until I know that a jury has been seated. What I want to do in this post is update you on some recent hearings and what we do know about the (alleged) upcoming trial. :)
~ Case Background ~
On March 18, 2009 at about 11:00 P.M., Stacey Barker's brother Nick made a 911 call to report his sister was at a Park n Ride (PnR) in Palmdale, CA and needed assistance. He reported his sister had called him for help. We don't know exactly what Stacey told her brother when she called him, but he and her (then?) boyfriend Brendon were already at the PnR when police arrived 3 minutes after the 911 call.
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| Precious Emma Leigh Barker |
Authorities say after making various inconsistent statements, Barker finally admitted making up the abduction story and inflicting the wounds on herself. She said Emma died accidentally, but fearing she would be blamed for Emma's death, she panicked and left her daughter's body in some tall grass near a freeway. Some 12 hours later, Barker led police to Emma’s body, where she had dumped her, in a grassy lot near the Golden State Freeway in Sylmar, CA.
On April 23, 2009 Barker was arrested at her grandparents home, where she had reportedly began staying sometime after Emma's death. She has been incarcerated at the Central Regional Detention Center since her arrest. Barker was appointed a public defender, Roberto F. Dager(RD). Her bail was set at 1 million dollars. The charges filed against the young mother include Second-Degree Murder, Assault on a Child Causing Death and one count of Child Abuse. The complaint alleges that Barker willfully caused and permitted the child to be injured and harmed and that injury resulted in death. The state of California alleges that Barker suffocated her daughter. Stacey Barker(SB) formally entered a not guilty plea to all counts on August 12, 2009. Representing the state in this case is Los Angeles County Deputy District Attorney S. "Kelly" Cromer(KC). The judge overseeing this case is Superior Court Judge Hayden Zackey (JZ).
~ Recent Case Developments ~
Even though there has been a number of hearings in the last month in preparation for trial, there really hasn't been much new to report until last week. To be honest the hearings have mainly consisted of a lot of bickering between the state and the defense over discovery, witnesses and outstanding motions....normal trial stuff although I'm surprised a lot of this wasn't completed long ago. Judge Zackey has been more than liberal...in my opinion ...especially with the defense. If Stacey Barker is convicted, she shouldn't have grounds to appeal based on ineffective counsel. Mr Dager has provided her with a very vigorous defense and filed every kind of motion you can think of. As a true crime and trial junkie, Katfish ponders has often wondered if law school includes a course on whining...if that course is offered, Roberto Dager was probably his teacher's pet. LOL!
This is what Tori had to say about the hearing on March 24, "Another slow ride on the Justice train, although Kelly makes it worth the wait, she is Awesome!"
I don't think Ms. Cromer would mind if I referred to her as a bulldog (She is a dog breeder and active in dog shows in her personal life). From what the girls tell me, Cromer doesn't give Dager an inch, and if she has to bark loud to be heard over Dager's whining she lets it rip. Perhaps a more tactful way to put it is they are both "passionate" about their adversarial roles. LOL!
The "debates" between the state and defense at this hearing were primarily about expert witnesses for both parties. Kelly Cromer asked Roberto Dager (once again) about getting a report from Dr. Harry Bonnell.
Dager told the court that Cromer has talked to Bonnell and she knows what he is going to say.
KC said "Dr. Bonnell was supposed to be here for a "402" your honor"
JZ asks RD, " Where is he?"
Dager replied, " I am not going to have him come here from San Diego just for this special occasion".(We didn't understand that remark??) RD continued," I want to know why you are singling me out. I thought you were going to do a 402 with Ribe too? She knows everything I know!."
KC said, " Your honor, does he expect this court to believe he does not know what his own witness is going to testify to? He is just trying to stall the case and drag his feet again and I would ask the court that if I don't have what Dr.Bonnell is going to testify to, that he be excluded as a witness.
JZ said, "Mr. Dager, just have Dr. Bonnell write a small report and give it or email it to KC."
(According to my notes, KC was asking RD for Dr. Bonnell's report as far back as February 2010. At that time RD told the court, that Dr. Bonnell, a Forensic Pathologist will testify there are tests that Dr. Ribe (Los Angeles County Deputy Coroner James K. Ribe) failed to perform on Emma that would change the cause and manner of death but wouldn't elaborate.)
Next RD said something about KC talking to Dr.Ribe about the mistakes she said Dr. Ribe made...oooooohhhh she (KC ) yelled," I DID NOT SAY HE MADE ANY MISTAKES! YOUR HONOR WHAT I SAID WAS I FOUND SOMETHING IN THE REPORT THAT I MISSED, BUT IT WAS THERE THE ENTIRE TIME! I do not want it in the press that I said Dr. Ribe made a mistake! RD knows that is not what I said, but he wants to say that in court so people will think that is what was said, and no, I have not talked to the Dr. at this time.
There was some other discussions about discovery and another witness but what I have told you so far should give you an idea about how this hearing went. Cromer and Dager did not agree on ANYTHING!
Judge Zackey told the parties he has a trial the rest of the week so the next hearing will be on 4/1, then he'll rule on the motions that were brought up earlier in the case. (?) The judge said he wants to set the trial date for the week of April 4th, noting that might change if the trial he has in progress goes longer and the hearing was over.
The April 1 hearing started out with Judge Zackey telling Roberto Dager and Kelly Cromer that today they will all act professionally......adding he was glad he had DECAF today. ( Emphasis mine.This judge has been very lenient IMO )
Kelly Cromer told the court that Dr.Bonnell still hasn't given his statement and he's not here today as the court ordered, so she asks that Dr. Bonnell be excluded as a witness. Judge Zackey told Dager to call Dr.Bonnell and ask him to submit the report.
RD said " I AM NOT GOING TO CALL HIM". The state knows what I know. They have talked to him, they know what he is going to say. I am not going to call him.
JZ asked RD, "So...are you going to be calling him as a witness?" RD said, " I can't say yet."
JZ told RD, " It sounds like you are not going to use him as a witness."
JZ then asked if Dr. Bonnell was going to say something different then Dr.Ribe?
RD told the judge," Dr. Bonnell will say the same thing as Dr. Ribe, that there is no conclusive cause of death."
KC said, "I am tired of him misstating the facts your honor! Dr.Ribe has a cause and manner of death and it's in the the Coroners report."
RD said, " Dr.Ribes opinion was influenced by the Sheriff's office and they led him to conclude the manner of death was a homicide."
JZ told RD he will have to give KC a statement from DB by 1:30PM today or he is going to start imposing sanctions per sec 1054..he goes on to outline sanctions that can be imposed.....
We don't know what RD objected to but he said he vigorously OBJECTS to that! JZ said," I'll tell you what I'll do, I'll have my reporter put it in the Record in BOLD and UNDERLINED that you OBJECT! (Yep, good thing he had decaf )
We're not sure who brought it up, but the conversation shifts....there are two 6 pack photo line ups that a witness has made an ID on. The person(s) who was identified in the photo line ups was reportedly at the Park n Ride on March 18. RD said something about a conspiracy and asks why is this just being brought up now? Dager tells the court he wants copies of the 6 packs and some phone records. The state contends there was a flurry of text messages they want in at trial. JZ said that he would sign a order for the phone company to give Dager the records within a week.
Tori said she doesn't know if BB (Stacey's boyfriend) got a phone call or had to use the restroom, but he got up and left the courtroom when this discussion about PnR was brought up, he did, however, come right back. There will be more discussion about this photo lineup at a future hearing.(BB hasn't attended another hearing since....which wouldn't necessarily be remarkable, except that he has attended nearly every hearing up to this point.)
Discussion returns to Dr. Bonnell. Judge Zackey tells both sides they will go "In Camera". The judge, the court reporter, and both sides leave for a bit. When they come back, JZ asks RD," OK, so you will not be calling Dr. Bonnell as a witness, is that right?" RD said, " No, I will not be calling Dr. Bonnell.....
JZ said that the next court date is 4/11 adding they have 10 days to start the trial from that date. JZ thinks that jury selection may take more than the 1 or 2 days ( the norm?) , but the trial he is in right now is going at a snails pace so he doesn't mention an actual date for the trial to start..(T, did I get this right from your notes?)
JZ is about to wrap up the hearing when RD said, " There are 2 defense witnesses in the court today." JZ asked them to stand and state their names and spell them for the court reporter. One is Amber Barela, a friend and co-worker of Stacey. We don't know why she is on the witness list. Earlier in the case she commented at a few forums in defense of Stacey, but made it clear she has absolutely no idea what was going on with Stacey around the time Emma died.(We've heard they were fighting) The other witness is Jennifer Goodnight, a supervisor over Amber and Stacey at Bank Of America.
Kelly Cromer said, " I want to state for the record the witnesses are seated with the Barker family...so Roberto Dager shoots back...."I want to note one is wearing Gray and one wearing black." Dager then told the court that he hasn't spoke to these witnesses yet and he wants to talk to them after the hearing is over. KC said she wanted to speak with them as well. This hearing is over....minus one expert, for sure...plus 2 defense witnesses? who knows...were they expected to testify to something today? and no trial date....yet.
The April 11 hearing was short and sweet in more ways than one. Short because it didn't take long, sweet because it was short, but more notably because Kelly Cromer and Roberto Dager were being nice to each other...
JZ calls the attorneys to the bench and they have a talk for about 10 minutes. After the attorneys returned to their tables, JZ calls "going on the record" and right away confirmed with both attorneys that the trial is going to be assigned to his courtroom and he would be the judge on the trial. Is that correct RD? Yes! Is that correct KC? Yes! Okay so we have established that it will be here. (Hmmm...can't tell you what that was about, whether there was an issue or if this is just procedure?)
JZ said that the bus from the jail is having problems, so we have no inmates yet. Dager agreed to waive his client's right to be present. Zackey said "We'll come back on 4/13 to finish up on the motions, 402's and discovery. I want to start jury selection by the 18th adding, I think it will take a few days and a lot of jurors will be dismissed so I am ordering 60 to start with."
JZ told RD to give the Massiah Motion (that you have written up) to KC today. KC said she will be in her office until 6 tonight, so if RD could get it to her before then it would be great, adding he tends to come in at 4:30 on the dot to give her things...JZ said you both know each others office numbers so you can get in touch by calling...RD said he would give her his cell # as well.( Several days were spent questioning witness and arguing the Massiah Motion. The only reason I can think of for giving it to the state now is that they agreed to some revisions. ??)
KC said that she still hadn't gotten some of the defense witness's statements so she will ask to exclude them at next hearing.
RD wanted to confirm the court would be ruling on his Change Of Venue, Media Exclusion and Massiah Motions at the next hearing..(The judge ruled against the COV motion earlier in the case, so the defense must have made another COV motion, but given the statements at the beginning of today's hearing that this case would stay it Zackey's court... it is confusing)
Judge Zackey said....so everyone is ready for trial? Mr.Dager? Yes. Ms.Cromer? Yes. Zackey replied, "OK, see you here on the 13th." This hearing was over
There was a lot of information covered in April 13 hearing. The state has 7 or 8 and the defense 38 motions (402) not including the defense Massiah Motion that the court needs to make rulings on.Many of the motions were to include or exclude photographs.
Some interesting information came out but it wasn't always clear which or whose motions the information was related to, so I'll just share the information and each sides stance as we understand it.
1) It was disclosed that 2 people were identified by a witness at the Palmdale Park n Ride where Emma was first reported missing by Stacey Barker. The two 6 pack line up photos were introduced at the hearing on April 1 and clarified further today. Identified were Brendon Borelli (Stacey's boyfriend at the time Emma died) and Nick Barker (Stacey's brother). Before now, in our posts we have usually identified Brendon Borelli as just Brendon or BB, but now that his name is a part of the public record, if we use initials it's for convenience.
Nick Barker was positively identified, but the witness had trouble doing a 100 % ID of BB from the 6 pack line up alone....What this witness (female ParknRide security) said was that she saw Stacey Barker and a man pull into the PnR in the same vehicle. The witness said that soon after they arrived, she noticed the male was gone and a red car was leaving the lot. She was certain that the man who had arrived with Stacey was the same man who returned later with Nick Barker Brendon Borelli).
2) The State wants to use photos of Emma in the location her body was left/dumped, because they show the state of Rigor that Emma was in. KC said they go to show that SB had driven around with Emma dead in the car for HOURS. (ugh! use your imagination) The defense wants any and all pictures of Emma's dead body excluded. I'm not sure what the state's stance is on the autopsy photos, but I would be surprised if they didn't want at least a few in for the jury's eyes only. (Perhaps one of our intrepid court reporters can clarify.) The defense also wants a drawing excluded that allegedly depicts hand marks on Emma's nose and forehead.
UPDATE- The state is not requesting to use any autopsy photos! Thanks T!
3)Another defense motion attempts to exclude testimony from Detectives Nava and McCarthy about their interview / interrogation of Stacey Barker after she was released from the hospital on March 19, 2009. Dager just wants the state to use the audio tapes of the interview to present the evidence of Barker's statements to law enforcement. Cromer argued against that saying that the detectives could better convey Barker's demeanor to the jury and if Dager wants to use the tapes to try and impeach them, fine. The defense doesn't want barker's booking photo used at trial either.
4) Earlier in the case we heard mention of an incident in the holding area at the courthouse. We learned what this is all about....one of the officers allegedly called SB a BABY KILLER and RD objects to her being called names like that by law enforcement. KC said the incident was unsubstantiated. RD said it shows that all LE are against SB and that they are all trying to turn everyone against her, but he concedes he thinks if these deputies get on the stand that they will not confess to saying anything that would get them fired. KC says this has no relevance to Emma's death so doesn't belong in this case to begin with. KC did say if Barker wants to get on the stand maybe they can get it in.
5) Barker was treated by a SART (sexual abuse response team) at the hospital because she said that she had been raped, RD does not want repetitive statements from the Dr.s, Nurses and anyone else she talked to at the hospital...KC said it is relevant because SB claimed she was raped and did have moderate vaginal bruising....(personally I think RD might be right on this one, it should definitely come in that the "rape" was part of her "story" but unless she made incriminating statements they don't need to "elaborate" they know she wasn't raped. kat)
6)The defense wants a large number of pictures and hours of video admitted to show that SB was a loving mother and how clean the house was and nice Emma's room was decorated . KC said it was a room in Stacey's parent's home and since the parents and other family members were with Emma more then SB, they may have had as much or more than SB to do with the design of room and the up keep of the home and Emma's room.
7) RD wants evidence and testimony about a party the night before Emma's funeral excluded. Dager said the family had a dinner/get together the night before Emma's funeral...KC called it a party and wanted everyone to know that at this party they played BEER PONG. Dager said it was a just a get together, not a party and the younger people did play Beer Pong but not SB, he said...her Mom even played ...JZ looked amazed and said wait...Emma's Mom or SB's Mom? RD said SB's Mom.
8)The defense wants Barker un-cuffed and un-shackled in front of the jury. They should prevail on this motion because defendants are normally allowed to wear street clothes and are un-cuffed in front of a jury so the jury won't be prejudiced by the defendants appearance. I have seen shackles left on defendants with the tables for both parties skirted so the jury doesn't see the shackles but those have been cases of violent inmates.
Judge Zackey said that the 13th was a fact finding hearing and he still has to rule on the 402's and the Massiah Motion (related to witness x) on the 14th. JZ said he will even take the hearings into Friday if needed because he wants all this stuff done before 4/18, the day he is going to start jury selection and the trial will start once the Jury has been selected...on that day or the day after.....
Before the court went on the record for the April 14 hearing Kelly Cromer gave Roberto Dager a time-stamped copy of the police report from the security guard at the Palmdale Park n Ride. Tori mentioned it was obvious the attorneys were going to be nice to each other again today. Think they had a pep talk from the judge? We can only wonder.
Once on the record, Judge Zackey said that he had went through the 402's at home last night and reviewed the tapes of Detective Sandra Nava's interviews with Witness X and had made some rulings.
JZ ruled that before X went to law enforcement he was NOT a Government Agent, therefore he would be allowed to testify to what he and SB talked about before X contacted the Sheriff's office. At that time X was not infringing on Barker's rights, so there's no need to address Massiah for that. JZ added if the state is going to use any of the recordings made after X was in contact with, they will have to talk about this Massiah Motion again for that. KC said that she did not think she was going to use the tapes but she would listen to them and see if there was anything she wanted to use and let JZ and RD know so they could talk about it.
They talked about pictures again, 2 photo albums full, KC only wants some photos allowed, RD said they need to have both full albums to prove what a good Mother SB was to Emma, How in all the pictures that she was well dressed and matched in colors of clothing, blanket, socks etc....she was not just a kid in a teeshirt and diaper. KC said something about most people do dress their kids well for pictures. Then she talked about how the Barker's parents took care of Emma for the most part and her brother also took care of her for SB. Kelly Cromer told the court that Barker's mother had Emma in the day while SB worked and SB's father had her at night when she was out partying...
(Stacey Barker's family were shaking there heads....as if to say NO we did not watch Emma...in early interviews Barker's father had said the family adjusted their work schedules to be available to care for Emma. In defense of Stacey, Amber B. told some of us that if SB was out and they called her that Emma woke up, she would go home right away...so how can they say no they didn't watch her when SB was OUT...will they testify differently? That remains to be seen.)
Whew were almost done here folks. No one from our group was able to attend the hearing on Friday the 15th. Tori said her daughter was at the courthouse on Friday and checked in on Judge Zackey's courtroom during a break in the case she was attending, but the courtroom was locked. None of the local media reported anything on Saturday so we don't even know if there was a hearing Friday.
On Monday, April 18 Tori went to the courthouse to see if she could sit in on the Jury Voir Dire, but no one was in the courtroom. On Tuesday, Tori again went to Judge Zackey's courtroom and the calendar on the outside of the door was FULL but nothing for Stacey Barker was on the list...She said she saw RD but no KC, so she went home and called someone she knows that would know the scoop. She was told that something like 70 Jurors had been asked for and 57 did come to the courtroom at about 10:30 they had gave the questionnaires to the potential jurors and told them to fill them out and come back on Thursday. JZ is in downtown on Wednesday so his court is dark.
T's friend said that they will start polling the Venires on Thursday, 4/21 and maybe go into Friday (no doubt, that is a lot of people) then if a panel is picked they will allow a couple of days for opening statements to be prepared by both sides. So...it looks like the trial could start as early as April 25th or as late as May 2nd....
We still don't know what most of Judge Zackey's rulings were or if he ruled on allowing cameras in the courtroom...I guess we will just have to wait for trial to find that out.
Here is the only media report we have came across so far about jury selection (Thanks LCM):
Jury selection starts in Palmdale child death
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